(PC) Hopper v. Newsom ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOUGLAS L. HOPPER, No. 2:20-CV-1802-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion, ECF No. 14, for injunctive 19 relief. 20 The legal principles applicable to requests for injunctive relief, such as a 21 temporary restraining order or preliminary injunction, are well established. To prevail, the 22 moving party must show that irreparable injury is likely in the absence of an injunction. See 23 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. 24 Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser 25 standard by focusing solely on the possibility of irreparable harm, such cases are “no longer 26 controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 27 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is 28 likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an 1 || imyunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public 2 || interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). The court cannot, 3 || however, issue an order against individuals who are not parties to the action. See Zenith Radio 4 | Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Moreover, if an inmate is seeking 5 || injunctive relief with respect to conditions of confinement, the prisoner’s transfer to another 6 || prison renders the request for injunctive relief moot, unless there is some evidence of an 7 || expectation of being transferred back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); 8 | Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (per curiam). 9 Here, Plaintiff asks the Court to direct that he be assigned a different primary care 10 || medical provider. See ECF No. 14. According to Plaintiff, since filing this action he has been 11 | the subject of retaliation by Defendant Taber at High Desert State Prison. See id. at 2. 12 Plaintiff's request has been mooted by his transfer from High Desert State Prison 13 || to the R.J. Donovan Correctional Facility on or about February 4, 2022. See Prieser, 422 U.S. at 14 | 402-03; Johnson, 948 F.3d at 519. Because Plaintiff has not demonstrated any expectation of 15 || being transferred back to High Desert State Prison, injunctive relief is now warranted at this time. 16 Based on the foregoing, the undersigned recommends that Plaintiff's motion for 17 || myunctive relief, ECF No. 14, be denied. 18 These findings and recommendations are submitted to the United States District 19 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within 14 days 20 || after being served with these findings and recommendations, any party may file written objections 21 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 22 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 23 || Yist, 951 F.2d 1153 (9th Cir. 1991). 24 | Dated: March 30, 2023 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE 27 28